31 August 2004

Around the Web

Major constitutional and ethical problems with a federal prosecution found after the conviction.

Is the rape shield law applicable if the defense is that "she is a prostitute who accused me because I stiffed her"?

Monk is doomed.

Remember . . .

Naked Male Drug Bust

About 80 naked men socialising at a nightclub were caught with their pants down, with many of them ditching drugs when the venue was raided by police.

. . .

The sudden appearance of the police had club-goers ditching CAT, cocaine, dagga and Ecstasy. Adriao said illegal substances valued at about R20 000 were found on the floor.

BTW - dagga is cannibas and CAT is a "synthetic stimulant methcathinone (produced from ephedrine)."

Virginia Court of Appeals 17 August 2004

Kyer v. Commonwealth - Subject: The Community Caretaker Exception.

(Facts) Police arrive at a house where they believe a participant in a breaking and entry lives. They find the front door open but no lights on inside the house or outside. Because the person they were looking for had supposedly taken part in a B&E and lives in this house they believe someone had broken into the house. They knock, announce themselves and enter. While making a protective sweep of the house, all the while proclaiming their presence in loud voices, they find two people asleep. Obviously, both are wearing earplugs because they aren't awakened by all the yelling going on. However, two minutes after finding the sleepers, when an officer shines a flashlight on the lady of the house she wakes up and shortly thereafter gives the two officers who have rousted her permission to search her house. The search turns up probative evidence.

(Finding) The court finds this entry valid under the community caretaker exception.

The Scope: "[T]he community caretaker exception may only apply to those circumstances totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." It must be "factually unrelated to an intent to search for evidence of illegal activity." In fact, the collapse of the "emergency exception" into the community caretaker exception "has erred on the side of the sanctity of individuals' Fourth Amendment privacy rights, by requiring, in every case, that police officers conducting warrantless searches pursuant to these exceptions do so independently of their criminal investigatory functions."

The community caretaker exception allows police entry into homes without a warrant.

The Test: Under the totality of the circumstances, was it reasonable for the officer to believe his actions were necessary for
1) The protection of the owner's property while it remains in police custody,
2) The protection of police against claims or disputes concerning lost or stolen property, or
3) Protection of the public and police from physical danger.

[comment] Oh, come on . . . Does any of that make sense to anyone who's not trying to cover for a bad search? There's not even any evidence given that the door was pried open or that a window was broken.

Case law in Virginia pretty clearly lays out that an open door is not an invitation for an officer to enter and that everything from the crossing of the threshold on is fruit of the poisonous tree. There are no exigent circumstances because there is no indication that the suspect is actually in the house. How then do you justify what the officers did? You trot out the community caretaker excuse. The problem is that this excuse doesn't even work under the standards laid out in this decision.

The search was not "totally divorced" from an investigation. Even assuming that the story woven is accurate and the occupants were deaf while they slept, the entire purpose of being at that address is investigation. They are there to find a suspect and immediately upon rousting the occupants they secure permission to search more thoroughly. These are not officers who drove down a street and saw a door suspiciously open; they were there to get their suspect.

Look, the community caretaker exception has its very, very, very limited real world applications. It's for the time when an officer stops to help a lady with a flat tire and sees 10 kilo of marijuana under the spare tire when he pulls it out for her. It's for the officer driving down the street who sees a store window broken and walking around the building finds a stolen car in the back. It may even be for the guy walking the beat who sees the Peterson's door wide open, realizes this is unusual, hears no answer when he yells in the door, and finds 16 year old Peterson Jr. passed out in the living room with a 6 pack in front of him and a beer in hand. The key to a real community caretaker exception is that the evidence is stumbled upon. And it makes sense in that context; it would be asinine to expect police to walk away from evidence just because they stumbled over it without the intent of finding it.

The problem is that it is also one of the most abused excuses seen in courts. Rarely have I seen it in one of the types of cases above. Rather, it is a fallback excuse used in cases like this wherein the search is obviously bad, the evidence must be excluded, and there's got to be some reason to get around that pesky 4th Amendment. There is no doubt that the approach to the house was purposeful. They meant to get their suspect and/or any incriminating evidence they could find. This was all part of a criminal investigation and the only way that can be ignored in considering the "totality of the circumstances" is to shear away the reason the police were there to begin with and the activities the police undertook the moment the search of the house for people was completed.

Cutright v. Commonwealth - Subject: Whether the unavailability of more than one lab to do an independent blood analysis requires the dismissal of a DUI or the exclusion of the certificate of analysis.

(Facts) Defendant gets arrested for a DUI. When the blood test is preformed he opts for a second analysis by a non-government lab. There is only one non-governmental lab which has qualified.

(Arguments) The Defense claims that the use of plural language (laboratories) and language such as "laboratory of the accused's choice" necessarily lead to the conclusion that he should have had at least two private labs to choose from and therefore the conviction should be dismissed or, in the alternative, the lab report should be suppressed. The prosecution goes outside of the criminal statutes to find a statute which states that allows the use of singular and plural forms interchangeably.

(Finding) Dismissal - The court blows past all of that and determines that the evidence was sufficient to convict even without a lab report. It will not allow a Defendant who otherwise admits guilt to profit by dismissal.

Suppression - The court does not decide whether either of the equally abstract arguments made by the two sides is correct. Instead, it rules that any failure to follow the law would have been a mere procedural error and not violative of any constitutional guarantees. Virginia will not suppress for anything less than a federal constitutional violation or a statutory requirement to suppress. Therefore, the violation is only considered as it effects the weight of the evidence and the proper remedy is to allow both sides to attempt to prove or disprove any prejudice coming from the procedural error.

30 August 2004

It's Not the Economy Stupid

This article points to the counterintuitive fall in crime rates that some cities are having even after the economy goes bad.

Texas Jury Qualifications

Apparently in Texas you only have to have a license to serve on a jury, you don't have to be sane.

Evil Attack Squirrel of Death!

Picture a large man on a huge black and chrome cruiser, dressed in jeans, a t-shirt, and leather gloves puttering maybe 25mph down a quiet residential street…and in the fight of his life with a squirrel. And losing.

(Okay, I know it has nothing to do with criminal law but I just couldn't resist)

Virginia Court of Appeals 10 August 2004

Moses v. Commonwealth - Subject: Is rubbing one's genitalia underneath pants in the view of another enough to qualify as "making an obscene display or exposure of his person?"

In this case both the majority opinion and the dissent are well written and well reasoned. The majority looks to pre-statutory common law, and reverses the convictions, concluding:
Our review of the common law of indecent exposure and the language of the statute itself compels the conclusion that the words "display" and "exposure" as used in [this statute] are synonymous and that the statute applies only when the body part in question was clearly visible without clothing or was exposed without clothing and likely to be seen."
The dissent comes back with a common law argument of its own with a definition of lewdness that would include the activity in question. As well, the dissent strikes back with a stronger argument that the words of a statute should be interpreted as to not render a portion superfluous. Therefore, display and exposure should have different meanings. The dissent then goes on to point out that "display" as construed under the use of a firearm in a felony statutes does not require the gun to have been seen. This is offered as the definition of display which should be followed and allow the convictions to stand.

[comment] IMHO, while both are interesting reads, the majority has the better of the argument. As to the common law, its argument seemed to find more of its substance in Virginia case law against which the dissent railed and offered argument which stretched further to make its points. However, the dissent's second point is thought provoking. Nevertheless, assuming this argument is correct - that the two words are in subjunctive and should have different meanings - the meaning of "display" isn't required to come out the way the dissent wants it. The statute seems pretty clearly to be an anti-nudity statute and the way I would read it "exposure" would be the lady nude sunbathing in her backyard where the neighborhood kids could see (or not) while "display" would be the same lady sunbathing nude but turning her chair so that the guy next door has no choice but to see her when he pulls his car into his garage. Of course, there are undoubtedly a plethora of possible definitions - this is just the one which seems most likely to me from a plain reading of the statute. In the end I don't think the dissent got close enough to even require the invocation of the rule of lenity; still it was a good argument.

Widdifield v. Commonwealth (en banc)- Subject: Can a judge sentence a Defendant to two years, suspending all of it on condition that the Defendant serve 12 months in jail and later sentence the Defendant to serve two years upon a show cause?

The Court decides that what follows did not preserve the appeal:
Court - The court revokes the two years that were suspended.
. . .
Attorney: Does she receive credit for the 12 months she pulled as well?

Court - No, because I gave her a two year sentence suspended on the condition that she serve 12 months and she served that and there's still two years left.
. . .
Attorney: I understand.

Court - You can check it.

Attorney: I'm not sure that's how it works, but . . .

Court - All right, go ahead.

Attorney: Thank you.
[comment] Unfortunately for the Defendant, I think the decision tracks with the controlling standard in Virginia's law. Judge Benton keeps trying to get the Court to maybe consider that the "ends of justice" exception could be invoked merely because an unjust thing might have happened in a trial but the court, as a whole, won't go there

As to this sort of procedure in a trial court - I think that technically it's wrong. It's hard to justify someone serving three years of a two year sentence. Still, I understand when this is usually done. At least in the courts wherein I practice this usually occurs when the judge is trying to give the Defendant a break. The guidelines come in for 2-3 years and the judge, either through his own sense of proportion or through something offered by the Defense, feels that it's overpunitive. So, the judge suspends an amount of jail time and requires the Defendant to spend a year in jail with the objective of keeping him from a penitentiary and allowing him potential access to programs like work release which the jail might offer. It's meant to be something which benefits the Defendant so it's hard to get upset at the judge even though it is wrong.

29 August 2004

Officers Who Blog

In case you want to read about a couple of people who actually apply all the stuff we fuss about, here are two:

The Policeman's Blog:
I simply don’t get to chase people any more. By the time a call comes in and is routed to the nearest unit, the offender is long gone and I turn up with my briefcase and take a statement. We usually know who we’re looking for, in cases of domestic violence or when the victim and offender know each other, so there isn’t really the incentive to go charging through broken windows and over fences, with the attendant risk of injury.

Having said that I still get the chance to go running after someone and the other night I did just that. Never found him of course, only really caught a glimpse at the end of the garden. But it was good fun calling out to him to give himself up and shining the dragon light in peoples back gardens and jumping over fences. If you get the chance to chase anyone it’s funny how any common sense leaves you and the only thing left is the “hunting” instinct. Makes me realised why I joined all those years ago. Nowadays though I have to carry so much equipment the villain gets an even better headstart.

having missed him I'll have to change tactics: I think I’ll just pester his girlfriend into giving him up. I’ll knock on the front door loudly at 8:00 am every morning when I’m on dayshift and 9:45 pm when I’m on nights. You may be wondering why I don’t just go round at 5:30 am or 11:45 pm and really inconvenience them.

You won’t be surprised to know that it’s against force policy to do this. Routine arrests can only be arranged between 8:00am and 10:00pm. You probably won’t be surprised when I tell you that my force has determined that arresting people outside these times contravenes their human rights (Article 8 Right to a Private Life)

Despite the obstacles to me arresting him, most of them imposed by senior police officers, I’ll give him a week to give himself up then call his employer and tell him I want to speak to him during working hours – he either talks to me next week or loses his job. I don’t suppose I’m allowed to do this either (Article 11 Freedom of Assembly and Association), probably.
Cop Talk:
It doesn't happen too often, thank goodness, but every so often officers end up arresting other officers or police department employees. I spent 9 months in 1990 on an investigation involving one of our narcotics investigators. He was using someone as a confidential informant who was on probation. A really big no no in Iowa. The guy was making narcotics purchases for the investigator, then the investigator would put in his paperwork that someone else made the purchase. In short, he committed perjury by not correctly identifying the informant. Myself and two other detectives arrested him at the end of the investigation. It was an unpleasant 9 months and at the end I was consuming large amounts of Maalox.
Last week it was noticed that some money was missing from the department. People who have their vehicles impounded pay a $20 fee to the police department to get their cars back. This money is collected at the front desk, which is where civilian employees work. In short order the culprit was identified and he was arrested. I just can't fathom the stupidity of the young man who did it. He was in our Police Cadet program, just 20 years old, preparing to become a police officer. The city was paying him $29,000 a year in that position. If he'd been hired as an officer next year he would have started at $41,000 a year. So he's pocketing money at $20 a pop. What an idiot! It was determined that he took approximately $3,200. I hope it was worth it!
Interesting stuff.

Around the Web

Mr District Attorney has made it to Wednesday.

In the United States we tag endangered critters - in England they tag ex-cons. Lv UK CrimJust

A new prosecutor website: For the Commonwealth.

What happens when police in Albany, New York target their enemies for as many tickets as they can write?

Crime and Federalism is already cynical enough that he doesn't believe "dropsy" testimony.

Matt Rustler asks what it takes to get someone disbarred in Virginia.

Cato - Federalists - Blakely

You can access Thursday's panel on what to do with the federal sentencing guidelines here.

28 August 2004

Various et Sundry

Over at I respectfully dissent there is proof positive that in N.C. they are progressives:
18. If you wanted to design a system to produce the least amount of product while consumed the maximum effort, you would design our court system. The last serious reform was abandonment of legal size paper. There are still feelings of resentment about that one.
[comment] We're still having difficulties with this one in Virginia. Everybody still uses the monster size legal paper files and there are still many who use legal paper itself. I think the problem may be that Jefferson never approved the switch to 8 1/2 X 11 (everything in Virginia must have had Mr. Jefferson's tacit approval). Still, Mr. Jefferson never expressly decried such a switch either so I think things are slowly getting there. Next up: Computers a C-64 for everyone!
. . . .

Public Defender Dude discusses the rape shield laws and a potential closing argument in a rape case. It's a thought provoking line of argument although I suspect the courts would not allow it because it implies the very thing which a court has excluded. If the prosecutor is on the ball he should object because it basically says, "I've been forbidden to tell you about it, but there's something relevant out there, in her past, which you should consider." Still, it's an interesting argument created in reaction to a type of statute which often violates the constitutional right to confront. Maybe with a little more subtlety:
Now, it's clear that the way someone dresses to come to court is not always the same as they dress outside of court, the prosecutor told you this when he told you Mr. Smith is cleaned up today, but in the real world he was a predator. However, let's not be mistaken - the prosecutor didn't have his witness come to court wearing short-shorts and a skin-tight tube top either. He had her come to court wearing a nice, conservative dress. He called Mr. Smith a predator but I can't call Miss Jones anything like that. There's no evidence to that effect and I am forbidden, by law, to ask those sorts of questions.
. . . .

Meanwhile back on the ranch . . .
Infinity Ranch comments on my answer to "How can you represent criminals."
I would just add that while most people I represent are guilty, many aren't charged with what they actually did or are sentenced to terms much more harsh than they deserve. Trying to limit that damage for the guilty, and maybe preserving some hope for rehabilitation in the future, is as important a function of my job as anything else.

. . . .

You'll remember that a while back I posted about a district court judge from my home circuit who went to another circuit and shocked them with a harsh sentence. Well, upon appeal the local circuit court judge gave a much lighter sentence.
. . . .

A new blawg: Law Notes. (Don't worry about it, more than one blawg has borrowed the "Week in a Life" format) Mark has been e-mailing me, helping me with graphic problems, and commenting on this site since sometime in his 1L year. I look forward to seeing how his blog develops.
. . . .

Finally, I find this non-legal site via Stop the Bleating. And let me be perfectly clear, if you are among the "Hot Women of the LORD" and want to make sure I am on the right path . . .

26 August 2004

Client's Parents

This post at Blonde Justice triggered numerous memories as to the bad interactions I have had with parents:

I've been practicing for a short time and it's the week prior to Christmas. Client has a show cause but has not bothered to come by and see me. Mom basically bullies Defendant into not continuing the case. The show cause goes badly (judge yells at me for not being prepared). Client goes to jail and when I get out in the hall Mom is all upset and yelling at me for ruining her Christmas.

Middle class family's little darling has been caught partying in a State park after hours. No marijuana was found on her person but co-defendant had it (the park ranger acted just a little too quickly). The park, like all the parks in this county, has signs all over the place prohibiting after hours occupation. It's a slam dunk for the prosecution who won't do anything to make it go away because of of problems they've been having out at the park. Guilty plea, $50 fine, case over, Client satisfied. Parents catch me out in the hall and tell me that this is going to ruin there little girl's chance of getting into college. They start asking me ridiculous questions about how close the sign had to be to the dirt road (Client drove past at least one very readable sign when she drove through a parking lot on the way to the dirt road). Then they start in on me as to why I didn't hire a private investigator for the case. Somewhere shortly after that I inform them that Client has ten days to appeal if she wants to and walk away.

Client's case was the last on the docket and his result was bad (can't remember the facts of it anymore). I stay in the courtroom after the judge leaves the courtroom to do some paperwork and talk to the clerk and deputies. Mom suddenly bursts in the back door and charges to the front yelling about what a terrible lawyer I am etc. By the time she gets to the front there are three deputies between her and me (remember folks, always be nice to the deputies). They escort her out and lock the courtroom so that she cannot come back in.

Client is caught stealing $200+ from a store (shoplifting electronics) and confesses. In the end, the prosecution will not reduce. On the day he is sentenced I am already feeling pretty crumby because I've just seen an 18 year old kid with no real record get marked for life. Mom is more than happy to pile on after I come out of the courtroom: "I want to thank you. He was my last child without a record and our hopes were all with him. Now you've ruined our family's last chance."

[caveat] Most families don't act like this. I get a lot of people who've seen so many family members go to jail that they just shrug it off. I get some criers. I get some who just shut down. However, nothing sticks in your memory more than those who yell at you.

How Popular are the Sentencing Guidelines?

You know something's up when law firms (that's firms) refuse to help the judiciary defend itself.

25 August 2004

Misuse of Terrorism Statutes

If you don't believe the anti-terrorism statutes are actively being abused, I invite you to visit SW Va Law Blog and read the linked article.

It's about a local government refusing to allow citizens to watch their elected officials in action because they are discussing potential crime and efforts to deter it.
"There are areas of the law where some type of gang activity are terrorism because you are terrorizing the public," Stripling said.
Does anyone out there actually believe the purpose of this statute was to allow government officials to exclude the citizenry while discussing ordinary - or in this case hypothetical - criminal matters?

[addendum] Here are the statutes in question:
§ 2.2-3711. Closed meetings authorized for certain limited purposes.

A. Public bodies may hold closed meetings only for the following purposes:

20. Discussion of plans to protect public safety as it relates to terrorist activity and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such activity or a related threat to public safety.

§ 57-48. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Terrorists and terrorist organizations" means any person, organization, group or conspiracy who assists or has assisted terrorist organizations, as provided in 18 U.S.C. § 2339 B or who commits or attempts to commit acts of terrorism, as defined in § 18.2-46.4.

§ 18.2-46.4. Definitions.

As used in this article unless the context requires otherwise or it is otherwise provided:

"Act of terrorism" means an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation.

§ 19.2-297.1. . . . For the purposes of this section, "act of violence" means (i) any one of the following violations of Chapter 4 (§ 18.2-30 et seq.) of Title 18.2:

a. First and second degree murder and voluntary manslaughter;

b. Mob-related felonies;

c. Any kidnapping or abduction felony;

d. Any malicious felonious assault or malicious bodily wounding;

e. Robbery and carjacking;

f. Criminal sexual assault punishable as a felony; or

g. Arson when the structure burned was occupied or a Class 3 felony violation of § 18.2-79.

(ii) conspiracy to commit any of the violations enumerated in clause (i) of this section; and (iii) violations as a principal in the second degree or accessory before the fact of the provisions enumerated in clause (i) of this section.
So, the booming metropolis of Staunton, Virginia thinks a gang may move into town and start committing murders, robberies, malicious assaults, etc. with the intent of intimidating the civilian population at large. If you really stretch what a gang does you can get there. A criminal gang may very well act to keep people from testifying or cooperating with the police. Of course, it doesn't have the terrorist intent of a proactive attack against a governmental, religious, or social structure with the ultimate goal of destruction or subjugation.

Around the World

Algerian police are coming to the US to learn how to combat organized crime.

The Amsterdam City Council finds out it is renting space from the very criminals it condemns.

India and Kuwait sign an extradition treaty.

India is having some trouble keeping clever criminals in jail - at least if they fake a heart attack and ask to be let out of the car to take care of nature's call in the woods. Nevertheless, trying to get together and spring someone from an Indian jail by brute force doesn't seem to work.

It sems in India a finding of not guilty can be appealed two years later.

In Australia "desperate networks resort to crime."

A $20 million dollar drug case goes away in Australia because of police corruption.

A call for drug courts in South Africa.

This article makes it seem as though Trinidad might to to marsall law because of rising crimes rates.

In Japan probation officers will soon be doing post-trial support work for victims.

24 August 2004

Should BigLaw be forced to Serve?

I respectfully dissent disagrees with Carolyn Elefant's assertion that BigLaw associates should be impressed to fill the lack of people defending the indigent.

Personally, I don't think the associates should be drafted. The courts should start at the top. Start requiring the senior partners at BigLaw firms to give up a week at a time under threat of a mandatory ten day contempt charge if the senior partner doesn't appear (even if he sends an associate). Announce that this policy will be set in place in exactly thirty days from this date.

I bet the system would get fixed - pronto.

Excessive bail shall not be required

Crime and Federalism points to excessive bail denying people their right to the counsel of their choice.

There's a story that passed around here a while back that there was a judge who set a significant bond and refused to appoint a defense attorney when the Defendant made bond but then couldn't afford an attorney. I was never able to determine whether it was apocryphal or not.

More on the Subpoena of Someone in Cairo

A reader was kind enough to point me in the direction of Mutual Legal Assistance in Criminal Matters Treaties of which there is one between the U.S. and Egypt.

Reading through the information, I find it a little disturbing that these only assist prosecutors and think that this probably raises all sorts of issues (at least in intra-U.S. law). However, I've got to get to court so I'll let ya'll sort them out.

Around the Web

completely unelectable reprints an article propounding the opening of juvenile courts and then posts an unfavorable reply to it.

Arbitrary and Capricious posts even more about the absolute disaster which is Grant County, Washington. You know that the local attorneys know the situation is bad and are running for cover when you read things like this:
On Friday, White filed court papers pleading for help. "I am swimming upstream right now," he wrote, saying he has no training in defending juveniles or experience with DNA. Admitting he lacks the experience to make crucial decisions in this case, he asked that Michele Shaw, an experienced Seattle attorney, be allowed to assist him.

White's current co-counsel wants to call it quits. De Young filed a motion last week asking to withdraw from the case, saying the county wasn't paying him promptly, causing financial hardship. He also said the county had poisoned the pool of available experts by stalling payment for their work in prior cases.

Without more financial help, De Young said, he feared being found incompetent, and held liable.
Macondo Law reprints an article which pretty much accuses various US Attorneys of "astro-turfing." If so, it strikes me as a rather inept way of doing it. If you are going to fake a grass roots movement you could do better than send two letters to Tennessee papers and one to Guam (unless there are a number of others and the author just didn't think it relevant to at least give us an estimated number). More likely, I think that "the brief" on this issue came down from the mount and the various USA's took it upon themselves to address the issue. Not wanting to cause future problems they cleaved to the revealed word and it shows. Either way it is humorous.

Mr. District Attorney shares somes frustrations over a judge.

23 August 2004

Adversary or Inquisition?

A question by Andy B.:
"Do you believe in the 'adversary system'--that the most effective way to get at the truth is to have advocates for each side fight it out? Or would you prefer a system where the entire court is devoted to the truth first and foremost?
. . .
I've never been convinced that the adversary system is really the way to go. Maybe it's one of those things that in practice is better than the alternatives (worst form except for all the others). What do you think?
Yes, I favor the adversary system over inquisitional systems. I think that the theory of the inquisitional system is alluring the same way the theory of communism is alluring. It's a great theory but I do not trust the reality of it.

That's not to say that one of the systems is more corrupt than the other. All systems tend to fail if corruption reigns. Nor would most see a marked change if the system were inquisitional. In fact most Defendants walk into court, plead guilty and accept punishment. I suspect that plea agreements and pre-sentence reports function roughly the same way that an inquisition would.

However, if someone asserts that they "did not do this thing" I am of a mind that he needs to be in an adversary system. By the time a Defendant arrives in court he has already been judged guilty by the officer, found guilty by whatever lower level authority approves police action (a magistrate in Virginia), been judged guilty by the prosecutor, had whatever version of grand juries and/or preliminary hearings find him guilty, and when he walks into court faces a palpable atmosphere of presumed guilt.1 This all reinforces what is perhaps the greatest danger in any system::
It is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.2
In an adversarial system there is a person whose role is to keep reminding the judge that the person before him is not just another of the great unwashed masses to be dealt with just as the last 50 were: the Defense attorney. His job is to make the judge realize that the facts (or lack thereof) in this case distinguish this particular person from all the others who have come before and been found guilty. It's his job to keep the system from sinking to the point that all that is seen is "the usual man in the usual place."

Do I think this system perfect? No, just preferable. Defense attorneys can fall into the same "workshop" mentality. The check on that would be a jury. But that's a post for another day.

----------- ---------- ----------
1 At an intellectual level we all realize that everything previous has only been to a "probable cause" standard but the "he's gotten this far, he must have done something" sentiment is strong and it is reinforced in court day after day as guilty people travel through the system.

The Post Which Follows This One

I am not happy with the post which immediately follows this. It's about the reason that I feel a Defense attorney is just in defending people whom he realizes are probably guilty. It is incomplete and requires so much more thought and research.

I have been trying to put this post together for a long time and I've never been satisfied with the result. I've walked away from it several times. The reasoning found in it is religious in nature and my instinct tells me that this needs to be developed quite a bit more. I suspect that a complete defense of the position would require several months of research and a seriously long paper.

After I wrote the post I came within an instant of once again erasing it and once again shelving the idea but I told Blonde Justice that I'd attempt to get something up this weekend about my reasoning for this kind of work.

So what follows is my attempt to explain . . .

Defending "Those People"

Anyone who represents Defendants in criminal matters has been asked the question over and over again: How can you defend those people? The moral assumption underlying that question is inescapable: to try to keep someone who is probably guilty from being punished is wrong/evil. I concede that this is a valid assumption. Having made that concession, how then do I justify defending people when I know that by far the larger number among them are probably guilty?

Well, in a great many cases I just look the person in the eye and say, "It pays the bills" or some variant thereof. I have learned from experience that most really don't want to hear an answer, particularly if it involves some thought or might challenge their world view. And it is amazing how many people will happily accept this reason despite the fact that it is, at best, an amoral position.

If someone seems to be expressing a real interest I go to the fairly basic answer which is reflected in statement which was previously at the top of this page:
If I choose to defend only the Righteous,
When the Rigtheous are accused,
What tools shall I have to defend them?
The statement has something of a double meaning. One interpretation is that if I don't practice except in the rare ocassions when there is someone I am certain is innocent, I shan't develop the skills to be able to defend that clearly innocent person when such skills are desperately needed. The second is that I must fight on in an attempt to preserve those rights and protections which exist for all citizens. Should these rights and protections slip away in the process of making sure "the guilty" go to prison when the truly innocent are brought to trial there will be nothing left to keep them from just being pushed through the system toward an unjust conviction. Thus, the evil of not performing the duty of defense is greater in the long run than the evil of defending those who probably committed the crime.

Still, personally I find this answer unsatisfying - particularly in the major criminal events: the Sniper attacks in DC, the Oklahoma City bombing, the killing of a pregnant mother, etc. The actual reason which I find in my heart is more complex and involves religious value judgements. What follows is an attempt to explain the reason I believe criminal defense attorneys morally correct in their defense of those accused, no matter who the accused is or his actual level of guilt.

I proceed from these base principals:
(1) To harm another person is a sin.

(2) It is impossible to live life without harming other persons.

(3) It is our duty to sin as little as possible.

(4) As members of a democratic republic we are responsible for every act of our government.
The cornerstone of this is that harming another, no matter whom you harm or how slight the harm is sinful. You could make the same argument that I make below by making some sort of "moral imperative" rationale but that just doesn't work for me. Personally, absent the argument of moral requirement, I do not find persuasive non-theistic arguments for moral behavior. Frankly, without a requiring agent nothing is actually necessitated beyond that which leads to an ordered society. An ordered society does not necessarily worry that a certain percentage of its populace is harmed as long as society continues to function.

My faith informs me that we all live sinful lives. Even were we still in an innocent state as proclaimed by the story of Adam and Eve in Genesis the innocence would not come from the fact we committed no sins but in the fact that we would have had no intent to do so. Remember, the tree was not about good and evil it was about the knowledge of good and evil. Gen. 2:16-17 & Gen. 3). Whether you believe this to be the literal Truth or a co-opted Mediterranean creation story meant to show creation and fall at the hands of One True God (rather than a multitude) it is instructive as to the presence of sin.

As I see it, the harm of others is clearly a sin. Throughout the history of my faith it has moved more and more openly to this position. The Mosaic code seems to have been an attempt to stop disproportionate harm to others by replacing things such as blood feuds (two of them for every one of us) with lex talionis. Exodus 21:23-25 In the immediate period prior to the life of Jesus it is instructive that this had evolved to: "That which is despicable to you, do not do to your fellow, this is the whole Torah, and the rest is commentary." Shortly thereafter came the "golden rule": "Do to others as you would have them do to you." Luke 6:31. In more modern times I look at the Church's teaching on the death penalty: forbidden unless there is no other means to keep the person from harming others.

The problem is that, given a little thought, one comes to realize that every act or act of omission causes some sort of harm to others. You work hard and get a raise and the person in the next office doesn't; you don't work hard and don't get the raise and provide less for your family than you are capable of doing. Now, I have purposefully chosen two fairly innocuous examples rather than a parade of horribles in order to emphasize that in most cases the harm, and therefore the sin, is minor and even goes unnoticed. Nevertheless, in every single choice of action either choice will render some harm to someone. This is a "but for" standard not a "proximity" standard.

Under this reasoning it follows that any act of the government which deprives someone of any basic right such as liberty is a sin. Often it is a necessary sin. Entering a suspect's house under the auspices of a warrant, gathering items from that house, and throwing the suspect in prison for the rest of her life because these items prove she is a serial killer are all necessary evils. They must be done in order to protect society at large despite the fact that they harm an individual. We are willing to sacrifice and do such evil acts because they are overweighed by the halting of greater evils.

We are responsible for the acts of our agents and those who serve in the government are the agents of everyone in the nation. Every harm which they perpetrate is imputed upon us all. The burden is to make sure that no greater harm is passed on then necessitated by the circumstances. Although not an exact fit, I think St. Thomas Aquinas' statement is instructive:
Human law is law
Only by virtue of its accordance with right reason,
By this means it is clear that it flows from Eternal Law.
In so far as it deviates from right reason
It is called an unjust law; and in such a case,
It is no law at all, but rather an assertion of violence.
Reason calls us to limit that amount of harm which our agents do in order to keep the attribution of that extra harm from ourselves. At any time the government steps beyond the necessary harm required by reason it is committing a violent act for which we are responsible. It is no answer that the sovereign is the actor for we are the sovereign as long as we have the franchise.

The role of Defender is to make sure that our government in its laws and punishments does not rise to the level of an assertion of violence because it has strayed beyond reason. It is, perforce, an imperfect solution. The Defender is an advocate for only a single individual at a time and must fight within the boundaries as they are laid in existing statutes and case law. Thus, for instance, he is not in a good position to do anything about the fact that under Virginia's laws licenses are suspended far too easily (usually punishing the lower working class for not being able to pay fines in time or get insurance while providing no alternative but to break the law in order to drive to work) or that the federal sentences are badly out of kilter (see my prior posts here & here). Still, it is a vital role. The Defender is the person who stands between society and the descent into vengeance.

Vengeance, as one might suspect, has no place in the system as I perceive it. Deterence and protection of society at large are valid goals which can balance appropriately the evil inherent in harming that particular member of society accused - if he is in fact found guilty.

On the other hand, vengeance is not a valid reason to harm another. It rises out of the base emotions of anger and, more deeply, out of fear. There is no such thing as a fair trial or an appropriate punishment when vengeance is involved. There is assumed guilt and a rush to overpunish. It is what has driven us in the past to acts such as lynchings or stonings. It is the greatest threat to a just, balanced system because it is never satisfied. Rules and rights will be bent or abolished because they get in the way of proving someone did what he is accused of having done. Punishments will be out of proportion because revenge is never satisfied at an appropriate level: it wants the sense of shock and fear caused by a disproportionate punishment because that gives the sense that the accused has then been as affronted as much as the victim is supposed to have been.

The Defender stands as the bulwark against such perversion. He does everything in his power to preserve the rights, rules and appropriate sentencing which guarantee the system will remain just, balanced and harm none further than is necessary. In fighting the thousands of individual battles he contributes daily, at the very least making the attempt to keep our laws and legal system from slipping into a mere assertion of violence. He fights against overharming individuals through unproven convictions and convictions made through the destruction of those rights and laws protecting everyone; he fights against the constant cry to overpunish. In so doing he keeps the stain of excess harm from society at large. He performs a most necessary service for us all.

22 August 2004

Non-Convictions as Evidence

A judge in NY has agreed to let prosecutors reopen files which were sealed without a conviction so that the prior non-convictions can be used in sentencing. on a conviction.

Is He Finished Yet?

Multiple crimes, multiple escapes, freed by a writ and the whole time "his common-law wife of 50 years, Shirley Jackson, has stood by him, even going to jail herself for smuggling him hacksaw blades."

Letters Rogatory and a Criminal Subpoena ad testificandum

As a comment to my interest in how a NY federal judge intended to enforce a subpoena ad testificandum against a man who lives and works in Cairo, Egypt someone was kind enough to point me in the direction of the Hague Convention on Evidence and Letters Rogatory.

I must admit to a lack of knowledge on the subject so I ended up doing a quick bit of research. The actual title of the convention is the "Hague Conference on Private International Law Convention on the Taking of Evidence Abroad in Civil or Commercial Matters" (find the actual convention here). A quick scan of the document would seem to indicate that it does not apply to criminal law. However, I did not sit down and read it indepth because I really didn't want to figure out statements like "The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 37" which make about as much sense as "During the third reconciliation of the last of the Meketrex Supplicants, it chose the form of a giant Sloar."

In the end, I must conclude that my reading is in error, lacks proper context, or that there are other sources for this power. At the very least the State Department, which I assume has far greater knowledge on this matter than I, believes that letters rogatory can be issued in criminal matters by American judicial authorities. However, the letter rogatory seems only to allow a deposition, without presence of US trial counsel and most likely without any cross examination:
The foreign court will execute a letter rogatory in accordance with the laws and regulations of the foreign country. In obtaining evidence, for example, in most cases an American attorney will not be permitted to participate in such a proceeding. Occasionally a local, foreign attorney may be permitted to attend such a proceeding and even to put forth additional questions to the witness. Not all foreign countries utilize the services of court reporters or routinely provide verbatim transcripts. Sometimes the presiding judge will dictate his recollection of the witness's responses.
This raises all sorts of constitutional issues about the right to counsel, the right to confront, the right to compel witnesses to appear in the courtroom (where a jury can judge their demeanor), etc. These three spring immediately to mind; I'm sure there are other problems with this process.

[addendum] According to the IRS, Egypt is not a signatory of the Hague Convention on Evidence (see first paragraph of sec. 5). So the judge must believe that his power to do this proceeds from another source. Anyway, since the trial is already in progress it would seem too late for a letter rogatory. The articles I've read all seem to indicate that the process is long and complicated and probably could not be completed by the end of the trial - much less the prosecution's case in chief. Although it would seem unlikely, maybe the witness has already voluntarily come to the U.S. Maybe the government plans to compel Rueters to give it the information somehow (though this would again seem to cause hearsay issues and a violation of the right to confront).

I just wonder if the government might have fought hard for an empty victory. Of course, I'll never know. No paper will cover this indepth enough for a satisfactory answer. If anyone out there understands all this feel free to drop me an e-mail straightening out any misconceptions I have and/or explaining the realities of the case.

21 August 2004

Man's Best Friend

Stretching the Jurisdictional Boundries

I'm just a little bit curious as to how a federal judge in New York intends to enforce a subpoena against someone living and working in Cairo, Egypt.

Blogging Your Trial

Here's the attorney (Lynne Stewart) who was charged by the feds with aiding her client in the pursuit of terrorism blogging about her own trial.

The last entry was 28 July but it's an interesting read up to that point

Somebody's Got to Claim Them

A couple big boxes of marijuana have gotten lost and cannot find their way home.

What Every Inmate Should Have

(1) Cell phones

(2) The ability to go to the University for classes.

(3) Computers in each cell.

(4) More TV channels.


The page swears this isn't a joke or apocryphal. Gotta say I'm not so sure.


Sorry folks, I just couldn't look at a teddy bear on my site anymore.

It hadta go.

NYTimes is Anti-Kitten

Arbitrary and Capricious proves that the NYTimes is anti-dog and anti-kitten.

Frustrating Day

I go to federal court this morning in order for my client to get sentenced. It's not as bad as most, he's facing 24-30 months for a small crack distribution. He didn't even have it on him - when the undercover police approached him he had to go down the street to get someone who actually had some. Then, after they indict him nobody bothers to go pick him up (eventually he is picked up when an officer decides to check his ID for just walking down the street) and in the ensuing two years he's gotten in no trouble.

Sometimes I wonder about the sense of perspective of those in the federal system. I looked at my client's record and compared to most I get it's a pretty minor record with only one felony event 20 years ago. Now that's not to say there's nothing on it - he has the typical little convictions you find on the records of those whom the presentence reports label "common laborers." Every couple years there's a driving with a suspended license charge or some other minor misdemeanor offense and sometimes he even spends a few days in jail. I regularly represent guys with 5 or 6 felonies and I've even had people with over 20 felonies on their record. My client's record isn't bad enough that it would get much, if any, attention in most State courts I practice in. Nevertheless, prior to the hearing the prosecutor is talking to me about how bad my client's record is. And then the judge mentions the same thing while sentencing my client. Huh?

Anyway, the judge sentenced my client to the low end of the guidelines and then stated that the sentence would be exactly the same if the guidelines are completely unconstitutional because the guidelines were an appropriate recommendation even if they weren't binding. While it really wouldn't apply in my client's case, I wonder what the entire 4th Circuit is going to do if the Supreme Court rules that only the upward adjustments are unconstitutional. It is going to be a mess.

But the annoying thing was that I screwed up a court procedure. It is a little frustrating to go into federal court because I don't get enough work there to be in the courthouse all that often. This doesn't really effect how anything turns out but it does lead to piddling little mistakes. I know sentencing hearings in the Commonwealth's courts inside and out. There are 5 stages and the attorneys actively partake in the first three, each in the same order: prosecution, Defense, prosecution rebuttal. The first stage is a discussion of the presentence report and any possible errors therein. The second stage is the presentation of any evidence. The third is argument over the sentence. 4th is Defendant statement. 5th is the actual sentencing by the judge.

So the hearing starts and the AUSA gets up and says "We have no objections to the report and we stand by our filings." I stand up and say I have no objections to the presentence report. Then I wait for the prosecutor to see if he wants to put in any evidence. The judge prompts me, asking if I have any evidence. So I have my client testify and sit again. The judge prompts for argument and I look over at the AUSA to see if he's going to argue anything and the judge prompts me, "He said he was going to stand by his filings." So I get up and argue. There were no real glaring errors or anything, it didn't effect the outcome, and I don't even think it registered with my client. I just hate being in court making stupid little mistakes while the judge looks at you quizzically.

When I leave the federal courthouse I burn rubber to get to the courthouse in the county I usually practice in. I figure I'm probably late and might actually be the last case left. However, the local courthouse has recently started scheduling all the drug task force's cases on Fridays so the court room is so packed that they have two prosecutors in there spelling each other and they are still running with a full courtroom when I get there. I have to wait a hour until my case is called. We do the preliminary hearing and the prosecutor's case for attempted robbery and use of a firearm in attempted robbery is weak but it survives the prelim. It will make for an interesting trial.

In the afternoon I go off to the jail to visit a client and find out something which really p.o.'d me but I cannot talk about it (at least not yet). By the time I finish I get back to my office after 5 p.m. I spend a couple hours doing paperwork and call it a day.

19 August 2004

Contracts and Judgement Day

All of you who are doing civil work should be ashamed of yourself if you aren't including this clause in your contracts.

The Federal PD in Hamdi

SW Va Law has a really good quote from the PD representing Hamdi.

Criminal Appeal on Taking DNA Without Individualized Suspicion

Criminal Appeal goes over a decision wherein California holds that the government's interests outweigh a person's right to privacy if he is on probation even if there is absolutely no individualized suspicion. Therefore, DNA can be taken in order to develop evidence for cases which happened before and after the person was under the legal supervision of the courts and probation.

Posts: here - here - here - here.

[comment] The problem here is that the government's interest will always outweigh the interest of the individual - in each and every situation. It's the reason balancing tests are so very dangerous to our rights.

Important Note to Bank Robbers

Don't try to hide above the ceiling tiles - they won't support you.

Someday Soon . . .

. . . I'll get posts up about the latest pronouncements from both the Virginia Courts Appellate and the Fighting Fourth. Sorry this week hasn't had 'em so far. I actually took Monday and Tuesday partially off and Wednesday was an all day joyride around the beautiful rural areas of Virginia so that I could visit my federal clients. Today is catch up with work day. Hopefully, I'll find some time soon to sit down, read, and parse the newest opinions.

Go for a Swim - Cause a Manhunt


No DUI for Horse Drivers?

Does this mean I should tell all my DUI clients to go out and buy a horse?

A call for Assistance

As of now, I plan to go attend the Blakely forum at the Cato Institute next Thursday at noon (assuming that there is no reason I end up having to go to court that day).

From what little experience I have driving in the DC area, I assume that it would not be a good idea to drive into the city. A friend suggested that I park the car and take the subway in (like I'd know where the subway starts or ends). I'm pretty clueless about this. If anyone has any suggestions I'd gladly take any advice.

Federalist Vetting of dog Names

Just remember folks, if you join the Cabal it must vet the names of your dogs.1 I'm not sure that Crime and Federalism is on safe grounds naming his dog "Amicus." It just sounds too much like something the ACLU or NACDL does.

Personally, I chose basic names. My labrador is named "Fred" after a famous graduate of my college (Centre) and my chow-golden retriever is named the "Spot" of Munsters fame. Both were vetted succesfully, although there was some problem with the Fred name. Consequently, I no longer name after people or things. When I named my cats "Buzz" and "Bit" they flew through the vettying process.

---------- ---------- ----------
1 Not to mention how hard it is to get a marriageable woman past them. How was I to know that my former intended's great-grandmother talked to Elizabeth Cady Staunton once?


Not sure what the NYTimes is trying to say with this article. Prisoners should be let go? Prisoners should be treated to a hotel experience? Prisoners should get generous passes to visit home and hearth? Maybe that pillories should be brought back? Or maybe it's just another article meant to let us know how the Euros are doing something else better than we are?

18 August 2004

New Prosecutor's Blog

A blog from someone who's been a prosecutor for 16 years: Mr. District Attorney.

More on Indigent Defense in Massachusetts

Carpundit commented on my post about Massachusett's indigent defense crisis:

Actually, some of the lawyers can be forced to work, and are being forced to work.

A Hampden County (the Massachusetts boondocks) Superior Court Judge ordered bar advocates to take cases. The SJC (highest state court) upheld the order.

In Hampden County, attorneys registered for the bar advocacy program as of August 3 can be forced to take cases (at the $30 rate) under threat of bar sanction. Although I am not (and never will be) a participant in the bar advocacy program, I believe a condition of participation is agreeing to take cases assigned to you whether you want them or not.

Yes, they should be paid more. But they knew the rates when they signed up. A "strike" is unacceptable. I've addressed this at my own site:
The dispute between the "striking" Bar Advocates and the Governor is heating up. Like Reagan with PATCO, Romney is threatening to "fire" them all.* I'm pleased. Sure, they're not paid enough. But their work stoppage is threatening public safety because without enough lawyers, courts are letting criminals out of jail.

A few quick points:

1. Bar Advocates should be paid more than their (lowest in the nation) current rates.

2. Bar Advocacy is about more than just money, and it is unprincipled to turn it into a labor issue.

3. Because having no lawyer is a get-out-of-jail free card, for the first time in American history it is better to be a poor defendant than a rich one.

*Why all the quotation marks? Because they aren't striking, really. They're just refusing new cases. And the Governor can't fire them because they don't work for him. He is threatening to prohibit them from getting any new cases, ever.
I addressed the issue of actually getting paid for your work in this prior post. To elaborate further, IMHO if the pay is so low that you are losing money or taking a very substantial hit when you take any court appointments it discourages people from concentrating their practice in that area. Those who serve the indigent (outside of PD's) will then generally fall into two groups: (1) Those who take appointments as a political matter, and (2) young lawyers who don't have anything else on their platter yet. The first group can actually be well established, very capable attorneys but, make no mistake, one of the reasons they are in court is to show their faces to the judges and garner favor among those in power in the courthouse (you know, the clerks). I see this in numerous counties wherein I practice but I also notice a lack of it in some smaller counties and in larger cities. Even where I see it, I doubt there are sufficient numbers willing to take a large enough case load to handle all cases. The second group is dangerous. They come into the courthouse for a cycle or two - because their firm wants "to give back" or they want to get some courtroom experience or they just don't have enough business to crowd out the criminal work yet - and then they disappear. This is not to say they are dumb or not good lawyers; I just mean they don't have the experience gained over time. Usually, they don't understand the procedure (cuz it ain't the procedure we were taught in law school) and often they don't have a feel for the way things work informally around the courthouse. Usually, most are bright enough to ask more seasoned attorneys for assistance. Still, there are those days when a brand spanking new kid from an all civil firm stands up and tries to do it the way he thinks it should be done without any help - those days are painful.

Which is a long winded way of saying that a cadre of experienced indigent defense attorneys needs to exist. When the pay is so low that these people walk away and start to develop a practice in real estate (the CLE booklet's sitting on my desk right now) because they can't make a living doing indigent defense it does no good to turn on them. Forcing these lawyers to work or be permanently banned from defending the indigent makes no sense. You'll either do 5 hours of work at a loss or we won't let you take any more cases at a loss? The mandated response to that is "Okay, take me off the list." These guys have to pay their bills - you can't just tell them to suck it up because there are principles involved. They obviously already have been for years. How else could the Legislature have gotten away with letting the situation get so bad?

The part about lawyers endangering the citizenry because these criminal will be let out of jail is a canard.1 The Legislature endangered the citizenry by refusing to pay an adequate amount so that market forces would bring lawyers to the job. The Legislature took advantage of the fact that many were willing to work with substandard funding - probably in good part because their principles got in the way of naked capitalism. Nevertheless, capitalism gets everyone in the end. Every single accused who gets out on an unsecured bond because he has no attorney is on the streets because of the Legislature; every single accused who has his case dismissed (mind you, without prejudice) has had his case dropped because of the Legislature; and everything that happens as a result of these people remaining on the street lies at the feet of the Legislature.

Again I ask: If this is the crisis proclaimed, why doesn't the governor bring the Legislature back in session to address the issue of adequate funding instead of trying to overburden PD's and force private lawyers into a Hobsons choice of working at extremely low pay or going out to do work which can actually pay the bills?

---------- ---------- ----------
1 Not perpetrated by Carpundit; it arises from the statements of law enforcement, prosecutors, the AG, and the governor as they act to label something they dislike and cast blame for the fact the system is failing because of Legislative neglect on the lawyers.

Guilty, but not . . .

"Son, you are about to get an early Christmas present, because I know what effect a probation would have," [judge] Hayman told the defendant Monday. "And it is a gift, because you are guilty as sin. I'm going to find you not guilty."

17 August 2004

Was my book seditious or a deadly weapon?

I arrive a hour early to federal court. It's a show cause so it's not like I can spend the entire time reviewing the file (again). I happen to have a book in the car which I am reading so I grab it; my plan is to sit across from the courtroom in one of the waiting rooms and read for a while. When I get to the front door the marshals confiscate the book but don't give an explanation. After court, on my way out they give me the book back so it must not have been a deadly weapon. All I can figure is that the book must be seditious and the marshals were doing their level best to keep writings about a man who spent so much time in France from corrupting the purity of our judicial system.

Next time I'll just leave the book in my car.

Important Travel Tip

If you ever find your self in Bagladesh remember there are two possible outcomes if the police catch you sleeping with a lady you're not married to: Marriage or a rape charge.

WARNING The story is no big deal but if you are worried about the names of sites you might not want to open this one at work. With apologies to those of you who already did.

Attempted Suicide by Cop?

It's the only way I can explain facing down officers with a sword.

It's a Joke . . . I think

I was using a search engine to look up pictures under the keyword "attorney" and this came up. I'm pretty sure it's a joke. I think.

Indigent Defense Day

I was looking for a particular article (never found it) and came across a number of articles on indigent defense. So today is all about indigent defense around the U.S.A.

Massachusetts Conflict Over Lack of Indigent Representation

In Massachusetts large numbers of private attorneys have walked away from court appointments because the pay is so bad:
The pay rate for public defenders is $30 an hour for district court, $39 an hour for superior court and $54 an hour for murder cases. The $30 rate is the lowest by statute of any state in the nation. Legislators responded recently by approving an hourly increase of $7.50.
However, the Legislature "has yet to pass a supplemental spending bill to fund it." Needless to say, this has not brought private attorneys back to indigent defense.

There was the obligatory lawsuit in an attempt to force a raise in compensation but the Massachusetts Supreme Judicial Court (SJC) chose a different path:
Last week, the state Supreme Judicial Court ordered that jailed defendants eligible for public defenders be freed after seven days if an attorney cannot be provided them. The court also ruled that criminal charges against bar advocate-eligible defendants be dismissed "without prejudice" after 45 days if no lawyer will tackle the cases.
And the local judges have been following through:
On Monday, a judge ordered the release of three suspected drug dealers because the state had failed to provide them with legal representation.
and there are further releases pending:
a Superior Court judge [is] consider[ing] whether to release 14 more accused criminals who were denied access to a lawyer
Local law enforcement and prosecutors are squawking:
"Someone is going to be murdered, raped, or robbed, and what are we going to say to the victim's family?" Hamden district attorney William Bennett said at a news conference in Springfield.

"Armed predators are being released right back into the neighborhoods," said Springfield Police Chief Paula Meara, one of 14 police chiefs who appeared with Bennett. "Babies and children are going to get caught in the crossfire. This is poor public policy."
The State Attorney General decried the SJC's ruling and offered that instead of releasing people from jail their cases should be shunted to the PD's offices:
Saying that prosecutors routinely handle twice as many cases as public defenders, Reilly said that the court should have ordered lawyers for the committee to take a heavier caseload before taking the "extraordinary step" of ordering lawyerless defendants to be released without bail after seven days.

Public defenders are limited to 30 cases at a time under their own rules.

"You can't just walk away from your responsibilities," Reilly said.
In the same article, this is rebutted:
William Leahy, chief counsel for the Committee on Public Counsel Services, defended the caseload levels yesterday, saying that public defenders have much less office and investigative support than prosecutors. In Springfield, he said, 10 public defenders share two secretaries and one part-time investigator.

"It's apples and oranges," he said. "To suggest that the function of a prosecutor supported by a whole law enforcement network is in any way comparable to the work of a public defender is absurd."

In general, Leahy asserted, Reilly's office has been "completely unhelpful" in efforts to resolve the state's public defender crisis, despite being a defendant in the Hampden County lawsuit.

"They have had nothing but criticism," Leahy said. "For them to be involved in Monday morning quarterbacking after being in the Sunday game is profoundly disappointing."

Leahy also pointed out that his office never requested that the SJC release defendants, but instead asked the high court to order higher pay for court-appointed lawyers, which the justices declined to do.
Now the governor has gotten involved and is trying to get indigent defense taken away from the judicial branch and placed in the hands of the executive branch (because we all know there's no conflict when the same branch accuses and defends). On top of that he's threatening to ban those who won't take underpaid work permanently from ever being assigned underpaid work:
If given oversight of the Committee for Public Counsel Services by the Democrat-controlled Legislature, Romney said, he would force lawyers to choose between accepting new cases at current rates or be banned from doing such work in Massachusetts.
The silliness of that position was quickly pointed out:
William J. Leahy, chief counsel for the committee, dismissed Romney's vow to blackball court-appointed lawyers who refuse cases.

"The threat to bar lawyers who are already leaving the program in droves is not likely to be the solution," he said. "That would have the effect of making a bad situation worse."
The governor likens the fact that attorneys are refusing to take work at substandard pay to a police strike - "a strike against public safety."

[comment] Unfortunately for the governor et al. that pesky Constitution denies him the ability to force people into involuntary servitude. Dang shame. Of course, if he gets his way he'll just swamp all the PD's and pretend there's no problem.

And it's not the attorneys who are putting anyone in danger, or the judges - it's the Legislature underpaying and even providing faux pay. We get faux pay here in Virginia too; theoretically my cap on misdemeanor pay is $120 but the Legislature only funds $112. Think I can pay my creditors with the faux $8?

For those of you who aren't lawyers, $30 a hour looks like good pay. It is if it's a wage but this is not a wage. Before the lawyer can take any of that money for himself he must pay his secretary, his office rent, his insurance, costs of office supplies, costs of utilities and phones, the double tax that everyone who is self employed pays, etc. It takes a huge bite out of that initial dollar amount.

As to what the SJC did, I must say that I'm pretty amazed. It avoided going into the Legislative realm when it refused to increase fees (in Massachusetts of all places, who'da thunk it?). It avoided going into the Executive realm by not ordering non-prosecution of minor crimes and making the charges dismissed without prejudice so that the prosecution can bring them back at any time, once the situation is fixed. It stayed in the Judicial realm ordering unsecured bonds and dismissals, both of which are clearly within the power of the courts.

Hmmm . . . One wonders, if this is such the disaster that it is being made out to be, why hasn't the governor called the Legislature back in session to fix the situation by raising fees to an equitable rate so that those dastardly criminals are no longer set free?

Louisiana Problems With Indigent Defense

There is apparently a federal case coming in Louisiana to force improvements in the indigent defense system. The problems?
The study of Louisiana’s system by David Carroll of the National Legal Aid and Defenders Association of Washington basically broke Louisiana’s problems into two areas — lack of proper funding and the fact that judges name the indigent defenders. The study maintains the judge’s goal of clearing dockets is in conflict with a defendant’s right to a fair trial.

“It’s not simply the money but also the structure of the indigent system,” Carroll said.

The lack of funding causes local public defenders to have “crushing caseloads,” and public defenders often do not see their clients, Carroll said.
Other articles compare the funding within the State (a recent Caddo Parish study found the public defenders' office had one-third the resources that prosecutors had) and compared to other States (both Kentucky and Louisiana each spend about $30 million a year on public defenders, the number of cases in Kentucky is 116,000 a year, while Louisiana public defenders handle an estimated 400,000 cases annually).

Georgia Impliments a Public Defender System

As of last Spring the General Assembly passed a law which "creates a public defender's office in each of the state's 49 judicial circuits." Things are getting worked out. One brand new PD's working conditions are described thusly:
Tucked into a tiny office in a far corner of the second floor of the Liberty County Courthouse since assuming his new job July 1, he has a desk, a filing cabinet- and that's about it.
Of course, there are problems. There are concerns that the offices need to worry about diversity and at least one case where a rejected applicant is suing on allegations of racial discrimination:
Wright said he and attorneys Alonza Whitaker, the Democrat nominee for circuit district attorney, and Dorothy Williams were the only black applicants for the local post.

"Both of these other lawyers have a lot more experience in criminal law and indigent defense than the appointee," Wright said. "And I've spent 27 years practicing criminal law, including 12 years in indigent defense and three years as a Recorder's Court judge -- but they didn't even grant me the courtesy of an interview.

"It has to be racism. I can think of no other reason," he said.
However, it would seem that there might be other reasons for the rejection (at least for Mr. Wright):
"On the one hand you've got a lawyer with over 20 years of experience who distinguished himself in combat, or somebody who won't pay his taxes," Hyles said. "That's an easy choice, isn't it?"

The panel chairman said Wright's well-publicized position that he shouldn't have to pay taxes was a factor in his evaluation.

"It's not right to give someone a government position with tax revenues when he will not pay his taxes," Hyles said. "In my mind, that disqualified him up front."

Wright has had a long-running dispute with the U.S. Internal Revenue Service over tax issues. In May, he filed suit in U.S. District Court challenging the constitutionality of the income tax law as applied against African-Americans. He contends in the suit that African-Americans have been denied key citizenship rights over the years, which exempts them from application of the income tax law and entitles him to a refund of about $25,000 he's paid in income taxes from 1964-95.

Indigent Defense Problems Around the Country

The report by The National Legal Aid & Defender Association in Washington, D.C., says the Montana system is unconstitutional in many respects, among them inadequate funding.

That results in inadequate services, particularly compared to what's available to prosecutors, the report says. It notes that in Missoula County, nine defenders are assisted by one investigator, one paralegal and three secretaries, but the prosecutor's office has the resources of police and sheriff's departments, plus three paralegals and seven secretaries.
North Dakota
There is lack of independence between indigent defense attorneys and the court system in North Dakota because typically judges negotiate contracts with attorneys.

The Legislature provides inadequate funding for the system.

The caseloads of indigent defense attorneys in North Dakota are too high.

Indigent defense attorneys are not adequately compensated.

There are administrative and quality control problems in the system.

The flat-fee contract system discourages attorneys from [working].

There is an incentive for contract attorneys to encourage clients to plead cases, instead of going to trial.

The county by county pay system is leading to some counties discussing increases in pay while others look to decrease the budget for indigent defense.

Racial Slur

In King County, Washington an indigent Defense attorney has been accused of calling his client a stupid [......] in open a courtroom full of people.

Do Not Partake of the Evil Powder

A public Defender caught with stuff that we should not have.

What Happens When you Don't Bring the Evidence to Court?

In Akron, Ohio the case gets dismissed.

I'm not sure how it got this far to begin with. If the pipe on the Defendant's person was obtained by an unconstitutional search why wouldn't the bag of cocaine found where the Defendant was searched be found an unconstitutional search after the officer concluded "the bag had fallen from Watts' person as I was patting him down and searching him."

Go After the Convicts' Kids

In Britain they are going to track the children of convicts:
Hazel Blears, a Home Office minister, said it was important to intervene early because currently 65 per cent of children with a father in jail get imprisoned themselves.

Lv UK Criminal Justice Weblog

16 August 2004

The Damn Yankee Defense

So, I'm sitting in court with another attorney who is there to try a threatening phone call case. It's a fairly typical case of two guys calling back and forth screaming at each other over the phone until one guy tapes the other and goes to the magistrate. Although everbody in the courtroom realizes this is pretty trivial intra-family squabbling there's really not much of a defense. Curious, I ask the attorney what his defense is going to be and he tells me : "He's a hothead Yankee."

And, you know what? It worked.

Gotta remember that one.

Belize Police Rules

Since Arbitrary and Capricious has blown my cover I am looking around for a place to "vacation." While so doing I ran across this set of rules which judges in Belize have set out for police who wish to question witnesses, suspects, and arrestees. It's interesting in that it covers most of what is in Miranda but seeing it phrased in a different way is kinda strange.

When Judges from My County Attack!! (Coming Soon to Fox)

I often have to tell my clients that they were unfortunate enough to have broken the law in one of the most conservative counties in one of the most conservative States (heck, even most of the Defense attorneys here are Republicans and there are rumors that one might be a member of the Federalist Society).

I know I've also told stories here suggesting the same thing. Of course, all you lawyers out there are a little cynical about these claims (everybody claims to practice in the worst jurisdiction).

Well, here's what happens when a Chesterfield judge goes off to another county: he even surprises the prosecutor.


Working With a Public Defender

Most everything in this article also applies to those of us who do court appointed work as well.

I particularly like these recommendations:
• Create a list of potential witnesses. Supply complete addresses, phone numbers, and background information about each individual, with good notes about what the witness can say on your behalf.
[comment] Get this list to your attorney at least three weeks prior to trial. If you get me the list the week of trial, or tell me about the people 15 minutes before trial, I'm not going to be able to get them subpoenaed. And, if they're not subpoenaed the judge isn't going to delay the trial because they aren't in court.
• Make a time-line of what happened, with dates and times of day, as appropriate.
[comment] If you do this step, don't lie. If you cannot do this step without lying, don't do it.
• Draw diagrams of the scene of the incident, with actual measurements, if possible.
[comment] This can be very helpful. When a lawyer has a large caseload he does not have time to actually visit many scenes. But use some common sense. If you are charged with reckless driving-speeding 20mph over the limit and you were the only car on I-95 at 4 am, a diagram of a straight road probably isn't going to be very helpful.
• Set up an appointment to sit down with your lawyer and go over the police report page by page, looking for contradictions and lies.
[comment] Well, in Virginia they don't have to give us the police report (though several do). I primarily want to meet with you to get the information in the first three bullets.

I would only add one more item: if you make an appointment to see your attorney move heaven and earth to get there. The percentage of court appointed clients who show up for their appointment is somewhere about 25-33% (at least for me). While I have become quite adept at trying cases after meeting my client for the first time out in the hall it's not my preferred way of doing business.

15 August 2004

Is it too late?

Is it too late for me to become a Supreme Court clerk?

I could go back and retake the LSAT and ignore the Princeton Review's advice so that I get a higher score.1 I could put some actual effort into applying to the Ivy league.2 I could live the One L experience of scheming, hiding books, and freaking out when exams came. I could actually participate in the write on for law review3 and spend the next two years telling law professors that they can't use the word "since" in thier articles because it has a duel, ambiguous meaning. Then I could send out a couple hundred resumes to "feeder" judges, with a cover letter explaining how I came to walk on water at a very early age, that I'm now looking for the more serious challenge of checking to make sure that the 20 string cites in a brief, averaging 15 cites apiece, are all on point, and that I think this will allow me to die a happy and fulfilled man. When I complete that clerkship I can send my resume off to each of the 9, with a cover letter explaining how much I enjoyed being an appellate clerk (especially that 30 page memo I had to research and write on the effect of Utah's Dog Liability statute on a herd of beef owned by an Alabama company which were run off a cliff by a Utah family's dog while vacationing in New York4) and that I think being a Supreme Court clerk would not only allow me to die a happy and fulfilled man, it would also guarantee me a place in the firmament. Then, after a year or two more I could go off and get a $150,000 bonus from BigLaw just for walking in the door.

On second thought, I'll just stay where I am.

---------- ---------- ----------
1 The Princeton Review suggested that if unable to complete a section you look up, figure out which letter had been used the least, and fill in the rest of the section with that letter. While doing the thrice-damned logic puzzles I screwed one up and had to redo it. I didn't have enough time to do the last question. Foregoing the age old wisdom of "When in doubt, Charlie out," which I think I had used since kidergarten, I took the Review's advice. I looked up and saw that "D" was the least used and filled all the rest with "D". Not a single one of the answers were "D"; three of the answers were "C". I would have scored in the 170's.

2 Yes, I did apply to Harvard but it was half-hearted. One of my fraternity brothers was absolutely beside himself because I hadn't applied to any Ivy League schools. One night, in the middle of a party, he and a couple other Brothers cornered me and made me promise to apply to an Ivy League school if they paid the application fee. So, I filled out the application and one of them ponied up the check. It was way too late to apply so I basically forgot about it after I sent it in and made plans to attend W&L. On the day I graduated from Centre I cleaned out my room and was getting ready to leave when I decided to make one last run by the campus post office. The only piece of mail in the box was the rejection letter from Harvard - the only school which rejected me.

3 Yep, I chose not to try to write on to law review. I regret not this decision. I had a lot more fun doing moot court and being on the moot court board (we got to travel around the country to competitions). And I didn't have to give up all my weekends sitting in the library checking obscure 17th century legal references.

4 Thereby making me the world's foremost expert on a subject which shall never again come before a court anywhere at any time.